O R D E R

Per: SURESH KUMAR BATRA MEMBER (J):-

1. The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-

(i) To quash the order dated 12.9.2019 (Annexure A-1) read with order dated 16.01.2020 (Annexure A-2), 28.07.2021 (Annexure A-3) and 23.11.2021 (Annexure A-4) vide which the child care leave sanctioned by respondents and availed by the applicant qua her third child (who is disabled) for 265 days during the years 2013, 2014 and 2016 has been cancelled retrospectively and she has been asked to apply for leave of the kind due or recovery of approximately Rs.4 Lacs is likely to be made from her which is illegal and arbitrary.

(ii) To declare that since the third child of the applicant who is suffering from mental retardation and needs constant care of the applicant, the applicant is entitled to child care leave for third child also as she had not taken any child care leave for 1^st child and the respondents be directed to grant her child care leave for third child also.

2. The facts of the case, in brief, are that the applicant is working as Trained Graduate Teacher (Punjabi) in Government Model Senior Secondary School, Sector 37, Chandigarh. She has three children namely Ms. Ishmeet Kaur, Ms. Japneet Kaur and Mr. Noordeep Singh. The applicant did not avail any child care leave for her first child. She took child care leave for 15 days for her second child. The third child of the applicant is suffering from mental retardation and needs regular sessions of stem cell therapy. She applied for and was sanctioned child care leave for her third child in five spells for 265 days in total during the years 2013, 2014 and 2016 vide orders dated 09.04.2013, 10.07.2013, 24.12.2013, 23.09.2014 and 22.01.2016 (Annexures A-9 to A-13 respectively). She applied for Child Care Leave from 01.08.2019 to 06.09.2019 for her third child vide her application dated 04.07.2019 (Annexure A-14) which was rejected vide letter dated 12.09.2019 (Annexure A-1) on the ground that she is not entitled for Child Care Leave for 3^rd child. Further, vide the same letter dated

12.09.2019, the Child Care Leave of 265 days already sanctioned for the five spells mentioned therein during the year 2013, 2014 and 2016 has also been cancelled by the Respondent no. 4. The applicant submitted a representation dated 24.09.2019 (Annexure A-15) requesting the respondents not to cancel the approved and availed Child Care Leave and further grant her child care leave for 37 days for her third child on medical grounds, which was rejected vide order dated 16.01.2020 (Annexure A-2). The applicant was asked vide letter dated 28.07.2021 (Annexure A-3) to apply for the leave of kind due. Vide 26.11.2021 (Annexure A-4), the applicant has been informed that her case has been re-considered and rejected as per rules/instructions. The applicant again submitted representation dated 10.01.2022 (Annexure A-16), but to no avail.

3. The applicant contended that the action of the respondents dehors the constitutional provisions, the very purpose of Maternity Benefit Act, illegal and arbitrary. The contention of the applicant is that the applicant‟s leave having been sanctioned by the competent authority and the applicant having availed the leave, it could not have been cancelled retrospectively. Reliance has been placed upon a judgment of the Ernakulam Bench of the Tribunal in the case of Lakshmi Vs. Union of India (O.A. No.926/2011 decided on 25.05.2012). It has further been contended that the respondents have not even cared to consider the hardship faced by the applicant as she has a son who is disabled to the extent of 90% and needs extra care and the purpose of Child Care Leave is to take care of children specially disabled children and as such denial thereof is illegal and arbitrary. Reliance has been placed upon the judgment of the Hon‟ble Supreme Court in the case of Thomas Daniel Vs. State of Keral